Opinion
NO. 14-18-00499-CR
03-28-2019
STEPHEN WARFIELD LIVINGS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court Harris County, Texas
Trial Court Cause No. 1417975
ORDER
On March 11, 2019, appellant Stephen Warfield Livings filed a motion to dismiss his appointed counsel, Jerald K. Graber, and to allow appellant to proceed pro se on appeal. When a criminal appellant waives his right to appointed counsel, he waives many traditional benefits associated with the right to counsel. Before an appellant may dismiss appointed counsel and proceed pro se, the waiver must be "knowingly and intelligently" made. See Faretta v. California., 422 U.S. 806 (1975).
Criminal defendants have a constitutional right to represent themselves at trial. Martinez v. California, 528 U.S. 152, 154 (2000). By contrast, they have no federal constitutional right to represent themselves on direct appeal. See id. at 154-62. The Texas Constitution does not give criminal defendants the right to represent themselves on direct appeal either. See Ex Parte Dupuy, 498 S.W.3d 220, 228-29 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Appellate courts have discretion to allow a defendant to proceed pro se on appeal, however, based on the best interests of the defendant and the government. Martinez, 528 U.S. at 161-62. This court follows the approach set out in Martinez and reviews requests to proceed pro se on direct appeal on a case-by-case basis considering the best interests of both the defendant and the State. Dupuy, 498 S.W.3d at 229.
Appellant contends his appointed counsel has not considered certain unnamed exhibits and that counsel has "overlooked a 'fatal defect' supported by the record." Appellant has not identified any specific action or inaction by appointed counsel that appellant finds ineffective or inadequate. Nor has appellant identified any conflict arising out of counsel's representation of appellant. Appointed counsel has filed a brief on appellant's behalf and the State has responded to that brief. Counsel's brief satisfies the applicable procedural requirements: it raises a proper issue on appeal, sufficiently states the facts, and contains argument and citation to authority. See Tex. R. App. P. 38.2; Hadnot v. State, 14 S.W.3d 348, 350 (Tex. App.—Houston [14th Dist.] 2000) (order).
We conclude that under the facts and circumstances of this case, it would not be in the best interest of either appellant or the State to allow appellant to waive his right to counsel and proceed pro se in this direct appeal. Accordingly, we deny appellant's request to proceed pro se.
PER CURIAM Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.